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The pandemic opened the eyes of employees and employers alike to what remote work could look like, and many employees do not want to go back to the 9-to-5 grind in the office. However, as inflation has risen and workers are feeling the economic pressure, more remote employees are choosing to fill that once free time not with family time or hobbies but with another job.
According to a report released by Resume Builder in October, 7-in-10 remote workers are working multiple jobs with 37% having a second full-time job and 32% having a side hustle.
“Companies need to anticipate that any employee may be working at an outside job,” says Peg O’Brien, a director in the Employment Law Practice Group at McLane Middleton.
Thirty-nine percent of employees working two full-time remote jobs are able to do so because they say neither requires 40 hours per week to maintain. Meanwhile, 34% work more than 40 hours per week to maintain both jobs. Among workers whose second full-time job is in-person, 60% complete remote work while at their in-person job. Only 32% keep their two work schedules separate.
Most are not working for competitors or other employers but for themselves, with three-quarters of workers with multiple jobs running their own businesses on the side.
“This is going to be surprising for employers [the number of employees who have second jobs] and may make them reevaluate their pay and benefits policies or cause them to enact some [new] policies,” says Jim Reidy, co-chair of the Labor and Employment group at Sheehan Phinney.
Policies to Consider
Employers should consider updating their employee handbook to include a conflict-of-interest policy if they do not already have one, says Amy Cann, an attorney with McLane Middleton. The policy should make clear employees cannot work for a direct competitor or a vendor, and employees cannot use company resources for their other jobs, Cann says. “[Employees] need to report any conflict of interest to their manager,” she says, adding the policy should be clear on how people will be held accountable. “Let people know it can be cause for termination.”
If an employer is not confident that employees will voluntarily disclose a second job or conflict of interest, they should have a mandatory disclosure policy for any kind of outside work in their handbook, O’Brien says.
Reidy also recommends a work-for-hire policy that makes it clear that any intellectual property developed for the company is being paid for by the company and is owned by the company. He says employers may also want to consider a non-solicit policy.
O’Brien says while it is not unusual for employment contracts to include an exclusive work commitment paragraph, the rise of the gig economy has required that paragraph to be tweaked to allow those side gigs in recent years.
One issue for employers to consider is whether having a second job poses a safety issue in their own workplace.
“If people are too tired coming into work and it’s a safety issue, that is an excellent reason to intervene,” Cann says, especially for employees who are drivers. “A tired office worker is not the same as tired truck driver or forklift operator. Any position connected to driving can present risks of accidents.” In order to avoid Department of Transportation violations, employers must have effective management systems in place like regular audits of Hours of Service records and clear enforcement policies, Cann says.
Tread Carefully
Experts say a zero-tolerance policy in regard to second jobs could hurt companies in the long run. “I am not a big fan of telling them they can’t,” Cann says. “Most people aren’t working a ton for the fun of it. Rents and mortgages are so expensive. It’s an economic necessity for many people.”
Employers need to consider what actual concerns they need to address before instituting a policy. “What may cause you to want to restrict an employee from working a second job? Is it interference with their ability to work in their current position? Is it absenteeism? Concerns about tiredness? You don’t want an employee working for a competitor?” says O’Brien.
Cann says if an employee’s second job is not interfering with their duties for your company, most employers are better off allowing it. “Pay attention to performance,” Cann says.
Reidy says with national unemployment at around 3.6% and NH’s unemployment at 2%, most employers are loath to force the issue. “Employers are saying it is not ideal but let’s salvage this relationship if we can. ‘Your primary focus should be here,’” Reidy says.
Considerations
Reidy says businesses can hold employees accountable for their time while on the job and for their performance. The quandary may come when a high performer slips to being satisfactory, Cann says. “Is it detrimental to your company that they have gone from great to average?”
“Having zero tolerance for a second job is not the right policy for many workplaces,” O’Brien says. “It’s becoming pretty standard for employees to have more than one job. It’s best not to say zero tolerance and make exceptions.”
For example, Cann says, someone managing rental property on the side is different from an employee with a marketing business on the side. And employers should consider the employee’s circumstance, such as a single parent who is ill and having difficulty paying the bills, she says. “Be supportive but clear in your expectations.”
Reidy says there can be an upside to the gig economy for employers. It can boost morale to have employees share their passion projects in the workplace and create opportunities. If someone is also a yoga instructor, hire them to provide yoga classes onsite as a benefit for other employees, he says.
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